Internal relocation within the UK and the case law

If a parent wishes to move from one location within the United Kingdom to another and the other parent objects, you can apply to the court for a prohibited steps order or a specific issue order. This happened in a recent case Re C (Internal Relocation) 2015 EWCA 1305 which provided guidance by the Court of Appeal about the principles to be applied.

The case involved a mother who wanted to move from London to Cumbria with her child (C) who was aged 8. The father, who had always had a considerable involvement in C’s life, objected to the move and appealed against orders made on in March 2015 allowing the mother to move. The mother and C were living in London in a property purchased by the father as the mother had applied to the court for financial provision for their child under Schedule 1 of the Children Act 1989, therefore, father purchased the flat for the mother on trust for C. The mother was to vacate the flat when C reached her 18th birthday. C was spending two nights a week with her father and alternate weekends returning to the mother’s care on the Sunday. Recorder Digney permitted the mother to move with C and made a child arrangement order with regards to the division of time between the parent’s. C was to live with her father on alternate weekends alternating between Cumbria and London and if the father was able to travel up to Cumbria during the week, C was to spend time in his care overnight for up to two nights a week. There was also provision for daily contact by Skype or Facetime and holidays were divided equally.

Evidence was heard by both parents and also the Cafcass officer had prepared a report and gave oral evidence. The Cafcass officer felt that a move was not in C’s best interests, this was despite the fact that C told the Cafcass officer that she wanted to move to Cumbria and that she was confident that she would be able to maintain a strong relationship with her father if she did move. The officer was concerned that C, what with being only 8 years old, did not have an entirely realistic view about the significant changes to be brought about by a move to Cumbria and the fact she would be spending a lot less time with the father. The officer felt that the move may be “emotionally damaging for C as she will not be able to enjoy the type of relationship with her father that she had had for all of her life”.

The Recorder accepted that the mother’s application was genuine and not motivated by a desire to exclude the father and that her plans to relocate were well researched and realistic. The mother’s family come from North Lancashire and they would only be one hour drive from Cumbria, she saw her move to Cumbria as returning home. The Recorder also accepted that if the mother was forced to stay in London that she would feel deeply unhappy, her feelings were likely to have a serious and very harmful impact on C. The father put forward proposals along the lines of assisting the mother to buy a property in Cumbria for holidays but for her to remain living with C in London. However, the mother said that the flat in London is situated in a basement with a small garden, it was described as being dark and had considerable damp problems, and the mother had no choice where she lived in London so long as she lived close to the father. The Recorder criticised the father on the basis that the father could have purchased a nicer property. The mother felt that she needed to safeguard her position once C attains the age of 18 by trying to get on the property ladder. The Recorder felt that the mother remaining in London was “must less conducive to C’s well-being than is the move to Cumbria”.

The Recorder accepted that the father’s opposition to the move was motivated by genuine concern for C’s future well-being and that he would be upset if C moved, however, he did not think that the upset would impact upon C as it would in mother’s case.

The law

A parent who wishes to move internally within the UK is not required to ask permission from the other parent, whereas, if a parent wishes to move abroad then there must be written permission or approval from a court. However, provisions of section 13 of the Children Act 1989 provide that where a child arrangements order is in force dealing with what was formerly called a residence or contact order, section 13 states that no person may remove a child from the UK (other than for short periods) without either the written consent of every person who has parental responsibility or the permission of the court. The freedom of a parent wishing to move within the UK will only be constrained if an order is made under section 8 of the Children Act 1989 usually for a prohibited steps order or specific issue order.

Internal relocation cases and external relocation cases (abroad) have historically been kept separate as the courts would approach them differently. A position had been adopted with internal relocation cases whereby the freedom of a parent to move appears to have been accorded greater weight in internal relocation cases than in external relocation cases. However, in Re F (Internal Relocation) 2010 WECA Civ 1428 this case concerned a move from the north east of England to one of the Orkney Islands and demonstrated that a relocation within the UK can create just as much, if not more, of a geographical and logistical barrier between the child and his or her other parent as a relation abroad. Lord Justice Wilson expressed discomfort about the state of the law on internal relocation as it had been represented, had he not felt bound by authority he would have suggested that it had taken a wrong turning. He felt that the time had come to go back to the beginning of cases to determine how the present compartmentalised approach has come about and what principles really do apply in internal relocation cases, and what, if any, adjustments are desirable/permissible.

Going back to the decision made in Re C (Internal Relocation) 2015 EWCA 1305 The Court of Appeal unanimously dismissed the father’s appeal, Lady Justice Black concluded at paragraph 54 of the judgement that once ‘welfare’ has been identified as the governing principle in internal relocation cases, there is no reason to differentiate between those cases and external relocation cases. In her view, the approach set out in K v K (Relocation: Shared Care Arrangement) 2011 EWCA Civ 793 and Re F (Internal Relocation) 2010 WECA Civ 1428 should apply equally to internal relocation cases. However, the outcome of the approach depends upon the facts of each individual case. A court will be less likely to impose restrictions on a parent wishing to move to the next village or town against a parent wishing to relocate to Australia or the other side of the world as with the latter cases, these are some of the hardest cases which the courts have to try and require great sensitivity and the utmost care.

One of the leading cases for the relocation of children abroad was Payne v Payne [2001] EWCA Civ 166 which set out a checklist, which for years was followed by many Judges such as:-

Is the mother’s application ‘genuine’ in the sense that it is not motivated by some selfish desire to exclude the other parent from the children’s lives? If so, the application must be realistic and founded on practical proposals, as well as being well researched and investigated.

If the point above is satisfied, the count should then consider whether the respondent father is opposing the application because of a genuine concern for the child’s welfare or for selfish reasons. If the application was granted, the court must consider the effect this would have on the respondent parent compared to the extension of the child’s relationships with the maternal family and homeland.

What is the effect on the mother if her application is refused?

Overriding review of the child’s welfare as paramount, as directed by the statutory checklist insofar as appropriate.

Lady Justice Black confirmed in paragraph 26 that the decision in Payne v Payne is valuable in so far as it helps judges to identify factors which are likely to be on importance but it is not to be applied rigidly.

There is no difference in basic approach as between external relocation and internal relocation. The decision in either type of case hinges ultimately on the welfare of the child;

The wishes, feelings and interests of the parents and the likely impact of the decision on each of them are of great importance, but in the context of evaluating and determining the welfare of the child;

In either type of relocation case, external or internal, a Judge is likely to find helpful some or all of the considerations referred to in Payne v Payne [2001] 1 FLR 1052; but not as a prescriptive blueprint; rather and merely as a checklist of the sort of factors which will or may need to be weighed in the balance when determining which decision would better serve the welfare of the child.

Judgment of the Court of Appeal
The Court of Appeal unanimously dismissed the father’s appeal and provided some useful guidance as to the principles that should be applied to applications for internal relocation’

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